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KI-Symbolbild: Vor einer hölzernen Wohnungstür im Stiegenhaus liegen zwei verschiedene Fußmatten nebeneinander.
Guide Letting Austria

The same flat let twice: Do not treat the second obligation as automatically ineffective

Two tenancy agreements concern the same flat and overlap in time. Secure both contract histories and have the existing obligations clarified together, instead of deleting the second contract internally.

Automatically translated – the German version is legally binding. Show original (German)

Published
19 Oct 2026
Research as of
17 Oct 2026
Applies to
Austria
For whom
Owners & landlords
Article ID
WX26-P03-0041

In your Austrian lettings file you have two concluded tenancy agreements for the same flat. Both provide for a commencement of use that overlaps with the other. It is not sufficient to set the later-created record to cancelled. The concrete obligations towards each party must be clarified together with the use that has already occurred.

Do not confuse the double obligation with nullity

The OGH explains in 10 Ob 134/98y that a further tenancy is not ineffective merely because older proprietary tenancy rights persist. Even towards the second tenant there may be an obligation to grant the agreed use. The legal principle continued in the RIS until a decision from 2024 maintains this principle. [OGH, RECHTSSATZ]

§ 1096 ABGB names usable handover and the granting of the agreed use as landlord obligations. [GEBRAUCH] An internal statement that the second conclusion was an office error does not answer the contractual situation that has arisen from it.

Secure two complete histories instead of a cleaned-up list

Our editorial recommendation: retain both contract files in their actual state. Record for each party the conclusion, agreed commencement, concrete property description, amounts already paid and all handover actions. Which keys were handed over when and for what? Has a person only viewed the flat or already taken it into use?

Also describe the origin of the error in a comprehensible way. Was an offer still open, a contract already accepted or only a non-binding draft sent? The article assumes two concluded contracts for its core case. Whether that really applies is the first professional question in cases of uncertainty.

Do not delete a history to make the administration overview appear consistent afterwards. Instead mark the conflict. This allows the advisory service to assess which declarations were actually made and which steps are still pending.

Prepare handover and resolution together professionally

Assessing competing rights involves more than the signature date. The OGH’s explanations also include the actual handover. [OGH] This contribution does not declare, as a rule, the person who signed first or the person who moved in first to be the final winner. Particular objections and the respective state of knowledge must be examined in the specific case.

Therefore do not instruct two carers independently to each fulfil their contract by handover. Submit both files to the responsible advisory body at the same time and state upcoming move-in or court dates. From this a coordinated next step towards all affected parties is required.

Fictitious case: The second payment is not a completed cancellation

After a change of management a landlady receives two confirmed move-in dates for the same flat. She would like simply to refund the payment of the later-recorded party and close the matter. After discovering the double obligation she first has the contract statuses reviewed. Which performance is still possible and which amicable solution can be offered is assessed together with the existing claims.

An alternative housing offer is described as a new offer to be examined concretely. It is not deemed accepted merely because it is approximately the same area. Likewise a monetary payment is not internally marked with an unexamined note as full settlement of claims.

Only enter the confirmed outcome into administration

After the professional clarification, actual agreements, payments, handovers and open claims are continued in a comprehensible way in both files. The organisational completion follows the clarified legal situation. This contribution does not provide a general damage compensation sum or a template for unilateral contract rescission.

Sources and context

Created with the help of AI and editorially reviewed. General guidance only; not individual legal, tax or financial advice. Errors and later changes are possible.